Jeanne L. Holmes-Kireilis v. Brockton, City of (SPR 20211969)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2021 SPR21/1969 Allison M. Cogliano, Esq. Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: I have received the petitions of Jeanne L. Holmes-Kirielis appealing response of the City of Brockton (City) to requests for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Ms. Holmes-Kirielis requested the following records: “…any and all records relating to the Community Compact Cabinet and the city of Brockton since the inception of the funding source, including but not limited to communications, either electronic or hard copy, account data, and any other records pertaining to the funding to and with Brockton…the ad hoc meeting that was schedule for May 10, 2021 at 6:15 p.m.” Prior Appeals The requested records were the subject of prior appeals. See SPR21/1598; SPR21/1576 SPR21/1710; SPR21/1712 Determination of the Supervisor of Public Records (July 26, 2021). In my July 26th determination, I found that the City intended to provide a response to Ms. Holmes-Kirielis. On August 4, 2021, the City responded. Unsatisfied with the City’s response, Ms. Holmes-Kirielis petitioned this office and this appeal, SPR21/1969, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Allison M. Cogliano, Esq. SPR21/1969 Page 2 August 17, 2021 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s August 4th response On August 4th, the City provided a response to Ms. Holmes-Kirielis, stating “…I have attached herein 19 documents which were attachments to an email thread I provided to you in my initial response.” Current Appeal In her current appeal, Ms. Holmes-Kirielis suggested that there are additional responsive records to her request. In an email dated August 17, 2021, the City confirmed that there are no additional records responsive to Ms. Holmes-Kirielis’ request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Where the City does not possesses any additional records responsive to Ms. Holmes- Kirielis’ request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Holmes-Kirielis is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b)

Allison M. Cogliano, Esq. SPR21/1969 Page 3 August 17, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeanne L. Holmes-Kirielis